Panelists Brief Press on New Supreme Court Cases

September 29, 2014 — The Affordable Care Act and Defense of Marriage Act cases will be tough acts to follow in terms of Supreme Court blockbusters. Yet this coming term has the potential to generate headlines too, especially if the Court grants certiorari in a number of significant cases that are ripe for review.

“There are petitions in the [same-sex] marriage cases, a petition challenging the award of tax credits to people who have obtained their health care insurance through the government exchanges, … the possible return of the Fisher affirmative action case testing the use of race in university admissions, and challenges to regulations on abortion,” Supreme Court Institute Executive Director Irv Gornstein told national and local media at the Institute’s annual press briefing on September 23. 

Reporters from such news outlets as CNBC, NPR, NBC, the Los Angeles Times, Bloomberg, the Associated Press, ABC, the New York Times, USA Today and the Washington Post turned out to hear analysis from Georgetown Law Professors David Cole and Martin Lederman; Erin Murphy (L’06) of Bancroft and Hashim Mooppan of Jones Day. 

Panelists said there was a near certainty that the Court will take up and decide the issue of whether the prohibition on same-sex marriage still existing in several states violates the U.S. Constitution. “This concept of same-sex marriage was [considered] irrational and unthinkable 20 years ago, and now any argument against it is irrational and unthinkable,” Cole said, noting a 7th Circuit decision by Judge Richard Posner that there is no rational justification for denying same-sex couples the same rights as opposite-sex couples.

Panelists next walked attendees through the cases that the Court has already agreed to hear, including Elonis v. United States, which asks whether the government, to convict a man who threatened his wife on Facebook, must prove that the man intended for his statements to be understood as threats. Lederman explored Zivotofsky v. Kerry, which considers whether Congress or the president has the final say on whether someone born in Jerusalem may list Israel as the place of birth on a passport.  

“I don’t think these cases are substantially different from what 60 percent of the Court is doing all the time,” Murphy said, discussing the Court’s decision to hear Yates v. United States — which asks whether a fisherman who threw his catch overboard to avoid being cited for their illegally small size was properly convicted under a federal destruction-of-evidence statute — and Holt v. Hobbs, which asks whether a prison must accommodate an inmate who wants to grow a beard for religious reasons. “It’s just that there are not the huge blockbuster cases on the docket yet.” 

A webcast can be viewed here.